the deed from Zartman to the plaintiff was likewise a deed of trust and not a mortgage; and that plaintiff was the owner and holder of the property and the legal title thereto, but a trustee nevertheless, for said John Bashore and to secure to plaintiff the payment of the sums of money found to be due and unpaid from the defendants to him. The court gave judgment for the full amount of all of the notes.

Appellants insist that the transaction constituted a mortgage and that plaintiff may not seek to realize upon any of the notes until they shall have failed to purchase under the terms of the agreement given them by plaintiff by which they were given five years within which to redeem their land. This contention cannot be sustained. It has long been the established law in California that a deed absolute upon its face may be treated by the court, as a mortgage, but this is not such a case. This is not a case of the hypothecating of property to which one holds title by way of security for a debt. It differs in its facts materially from such cases as People v. Irwin, 14 Cal. 433, Hickox v. Lowe, 10 Cal. 206, and others, in which the transactions involved were declared by the court to be mortgages. This case more resembles Woodward v. Hannegan, 128 Cal. 295, [60 Pac. 769]. In that case the money had been advanced by plaintiff's testate to purchase land for the defendant, the title being taken by the lender. The court held (following Campbell v. Freeman, 99 Cal. 547, [34 Pac. 113]) that a resulting trust arose in favor of the person to whom the land was conveyed. The defendant has a right to a conveyance only upon complying with the terms of his contract of purchase. The same principle is asserted in Vance v. Anderson, 113 Cal. 537, [45 Pac. 816]; Windt v. Covert, 152 Cal. 351, [93 Pac. 67]; Brown v. Spencer, 163 Cal. 591, [126 Pac. 493]. While it is true that an instrument purporting to convey the title to real property may be shown to have been intended as a mortgage, clear and convincing proof of that fact must be shown to justify a court in so finding, and appellate courts are slow to disturb a finding either against or in favor of the theory that a mortgage has been shown to exist. (Beckman v. Waters, 161 Cal. 584, [119 Pac. 922].)

The defendants made no tender in court or at all under their right to demand a conveyance of the legal title to the

property. Their principal purpose apparently in seeking to require the plaintiff to await the maturity of their option to purchase before beginning his action and then proceeding only by way of foreclosure is to permit time for the operation in their favor of the statute of limitations upon some of the claims evidenced by their notes. Equity should not aid them in such a matter. The court should not have entered a judg ment, however, giving the plaintiff the full amount of the demand evidenced by the face of the note and making no allowance for the maturity of the option which would give Mr. Lamberson complete title to the land relieved of the trust. This would give him the property and a judgment for the purchase price besides. As the time allowed by the writing of January 4, 1907, for the payment of the indebtedness of defendants to plaintiff and the taking of a deed from him to them had passed before the case was actually tried and as the evidence shows that the defendants failed to accept the offer of performance made by plaintiff in open court, a just result may be reached by a reduction of the judgment in the sum of $2500 (the amount which plaintiff paid for the land) and interest for that amount from the date of the note for $3300.

There is no merit in the contention that there could be no suit by the assignee of the firm of Lamberson & Lamberson because the members of that copartnership had failed to sign and acknowledge the certificate required by sections 2466 and 2468 of the Civil Code. (Pendleton v. Cline, 85 Cal. 143, [24 Pac. 659]; Carlock v. Cagnacci, 88 Cal. 601, [26 Pac. 597]; Trudel v. Butori, 19 Cal. App. 585, [127 Pac. 76].) The case of North v. Moore, 135 Cal. 622, [67 Pac. 1037], is not in opposition to the other authorities cited above. From the designation "Abrams Bros." it would be impossible to determine how many persons were in the firm. But "Lamberson & Lamberson" indicates that two persons of that name are engaged in business together.

Appellants call our attention to the confidential relations existing between themselves and the plaintiff as their attorney. The court found that although the defendants frequently consulted plaintiff and acted upon his advice, nevertheless they "relied solely and entirely upon their own judgment as to the course to be pursued with reference to all such suits and matters, after they had learned from plaintiff his views and taken

his opinion with reference to the legal rights of said defendants, touching the matters concerning which they asked of plaintiff his advice." It was also found that "said plaintiff, in all his dealings with said defendants, and particularly the dealings involved in this action, acted fairly, honestly and for the advantage, benefit and best interests of said defendants, and he did not exercise or attempt to exercise complete, or any dominion, domination or control over said defendants, or either of them in any matters relating to any litigation affecting them, or at all." There was evidence tending to support these findings and we cannot say that the court erred in making them.

No other alleged errors require attention.

Let the judgment be amended by striking out two thousand five hundred dollars and interest as indicated above. In all other respects it is affirmed as rendered.

Henshaw, J., and Lorigan, J., concurred.

[L. A. No. 3198. Department Two.-March 14, 1914.] FIRST NATIONAL BANK OF RIVERSIDE, Respondent, V. CHARLES H. MERRILL et al., Defendants; CHARLES H. MERRILL et al., Appellants.

MORTGAGE-DEED ABSOLUTE WITH DEFEASANCE-SUBSEQUENT DECLARA- . TION OF HOMESTEAD.-Where a husband and wife execute a mortgage to a bank, in form a deed absolute with a contemporaneous collateral writing declaring the deed to be a mortgage to secure a present indebtedness and future advances, and subsequently the mortgagors declare a homestead upon the property, they cannot escape liability under the mortgage because the instrument constituting the defeasance was not signed by them or acknowledged by any of the parties, nor because the mortgage was not recorded until after the filing of the homestead. ID.-DEFEASANCE-ACKNOWLEDGMENT BY HUSBAND AND WIFE-HOMESTEAD. The requirement that the defeasance be acknowledged by husband and wife, in the case of an encumbrance upon an existing homestead, has no application to a mortgage created under such circumstances before the existence of the homestead.

ID. RECORDING OF MORTGAGE AFTER FILING OF HOMESTEAD.-The fact that the mortgage was not recorded until after the filing of the homestead does not make it unenforceable because of the homestead rights.

ID. ACKNOWLEDGMENT-NOTARY WHO IS CASHIER OF MORTGAGEE BANK. The acknowledgment of the deed to the bank is not invalid because taken before a notary public who is assistant cashier of the bank. ID.-NOTARY WHO IS STOCKHOLDER IN MORTGAGEE BANK.-Neither is such an acknowledgment invalid because the notary is also a stockholder of the bank. ID.-NOTARY-WHETHER FUNCTIONS ARE JUDICIAL OR MINISTERIAL.-A notary public does not exercise judicial functions, and his act in taking an acknowledgment to a conveyance is ministerial.

APPEAL from a judgment of the Superior Court of Riverside County. F. E. Densmore, Judge.

The facts are stated in the opinion of the court.

Campbell & Moore, for Appellants.

McFarland & Irving, for Respondent.

HENSHAW, J.-This action was brought by plaintiff as mortgagee to have a deed absolute in form declared to be a mortgage, and to have the mortgage foreclosed against the land of Charles H. Merrill and Mary B. Merrill, defendants and appellants. The facts, over which there is no controversy, are in their chronological order the following: In March, 1909, Charles H. Merrill borrowed five thousand dollars from plaintiff bank to pay for the real estate here the subject of foreclosure. In April of the same year Merrill and his wife executed their deed of grant of this land to the bank. It was, however, thoroughly understood and agreed that the deed was but a mortgage given as security for the five thousand dollars already advanced and for such future advances as the bank might make. Contemporaneously a letter, in effect a defeasance, was given by the bank to the Merrills declaring the deed to be a mortgage upon the conditions above noted. This letter was signed by the bank, through Moulton, its president, but was not signed by either Merrill or his wife, nor was it acknowledged by any of the parties named. The acknowledgment to the deed executed by Merrill and wife to the bank

was taken before a notary public, who, at the time, was the assistant cashier of plaintiff bank and a stockholder of the corporation. The bank loaned the Merrills the additional sum of two thousand dollars, so that secured by this mortgage there was due the bank the sum of seven thousand dollars. Admittedly no part of this sum has been paid. The mortgage deed to the bank remained in its possession unrecorded. On the twenty-third day of February, 1911, the Merrills filed a claim of homestead covering the property. Two days afterward Charles H. Merrill was adjudicated a bankrupt, and two days after that, on February 27, the bank recorded its mortgage deed.

The Merrills are here engaged in an effort to defeat the payment of this admittedly just debt by virtue of the provisions of the homestead and recordation acts. In this effort they place great reliance upon the case of the Merced Bank v. Rosenthal, 99 Cal. 39, [31 Pac. 849, 33 Pac. 732], declaring it to be "absolutely on all fours" with the case at bar, and insisting that its declarations of the law compel a reversal of the judgment given by the trial court in favor of plaintiff. In fact, however, from a legal standpoint, there is not only no identity, but no similarity between the Merced Bank case and the one before us. In the Merced case Rosenthal and wife had executed a mortgage in the form of a deed of grant, which mortgage was upon their existing homestead. The defeasance rested in a contemporaneous parol agreement. This court held that where it was sought to encumber homestead, the mandatory provisions of sections 1241 and 1242 of the Civil Code required that the instrument of encumbrance be executed and acknowledged by both husband and wife; that a defeasance in the case of a deed absolute upon its face is a necessary part of a mortgage contract, and that as the mortgage contract is not complete without the defeasance, that defeasance in the case of an existing homestead must conform to the provisions of sections 1241 and 1242 of the Civil Codenamely, it must be a written instrument, acknowledged by husband and wife. It certainly can require no discussion to show that the very rigid rules governing homesteads and protecting them from encumbrances have no application whatsoever to real property not impressed with a homestead. The latter is the case here presented. The mortgage was executed